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Intl. arbitration tribunal recognises companies may have obligations under intl. human rights law in Urbaser v. Argentina water dispute

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10 February 2017

Urbaser v Argentina: The Origins of a Host State Human Rights Counterclaim in ICSID Arbitration?

Author: Edward Guntrip, on EJIL: Talk

Investment tribunals rarely examine host state arguments based on international human rights law in great depth. The ICSID award Urbaser v Argentina is the first to provide a detailed discussion of a host state’s human rights counterclaim.  Hence, this decision presents an opportunity to more fully understand the role of human rights in investment arbitration.  As the text of the award is very rich, this post focuses on whether the tribunal has created a precedent for a host state human rights counterclaim in ICSID arbitration...The award in Urbaser v Argentina does create a precedent for a host state human rights counterclaim.  The approach taken by the tribunal makes it easier for counterclaims to fall within a tribunal’s jurisdiction.  However, the substantive law that can form the foundation of the counterclaim, consisting of an ‘obligation to abstain’ is not clearly established based on the texts referred to by the tribunal.  Further, the tribunal’s final reference to this principle is somewhat ambiguous.  Therefore, the next stage in introducing human rights into ICSID arbitration will be to determine, with more precision, which rights are capable of forming the basis of host state human rights counterclaim.

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31 January 2017

Holding investors to account for human rights violations through counterclaims in investment treaty arbitration

Author: Naomi Briercliffe, Allen & Overy, on JD Supra

...Following the recent decision of the tribunal in Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v Argentina, this blog post considers the circumstances in which a state may be able to bring a counterclaim under an investment treaty against an investor for human rights violations...

...The dispute concerned a concession for water and sewerage services in the Province of Buenos Aires granted in early 2000 to the claimants’ subsidiary, AGBA. The concession was ultimately terminated by Buenos Aires in July 2006...

...The tribunal rejected the claimants’ argument that (as a matter of principle) guaranteeing the human right to water, like other human rights obligations, was a duty borne solely by states. It stated that, while in the past it was held that only states could be subjects of international law, that principle had “lost its impact” in light of the acceptance of a corporation’s ability to invoke international law rights, for example under BITs [Bilateral Investment Treaties].

...the tribunal held that there existed an obligation on all individuals, including corporate individuals, not to engage in activity aimed at destroying the human right to dignity, and the right to adequate housing and living conditions. However, the tribunal could not find evidence of an obligation on corporations corresponding to the obligation of states to provide all people living under their jurisdiction with safe and clean drinking water and sewerage services (which was the obligation that Argentina alleged the claimants had breached). Accordingly, Argentina’s counterclaim was dismissed...

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8 December 2016

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa (claimants) and The Argentine Republic (respondent)

Author: International Centre for Settlement of Investment Disputes

[Full text of the decision]

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